Kidd v Van Heeren - [2016] NZHC 568

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-725 [2016] NZHC 568

BETWEEN
MICHAEL DAVID KIDD

Plaintiff

AND

ALEXANDER PIETER VAN HEEREN Defendant

Hearing: 11 March 2016

Counsel:

BR Latimour, SD Williams and A Wakeman for Defendant
(Applicant)
S Mills QC and B O'Callahan for Plaintiff (Respondent)

Judgment:

5 April 2016

JUDGMENT (No 10) OF FOGARTY J

This judgment was delivered by Justice Fogarty on
5 April 2016 at 4.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors: Kirkland Morrison O’Callahan Limited, Auckland
Fee Langstone, Auckland

KIDD v VAN HEEREN [2016] NZHC 568 [5 April 2016]

Introduction

[1] On 7 July 2015, in Judgment (No 3), I refused indemnity costs against the plaintiff, Mr Kidd.

[2] In Judgment (No 5), delivered on 14 December 2015, I allowed the plaintiff’s claim for increased costs, determining various consequential matters, largely in the plaintiff’s favour, finding that it is appropriate to consider the complexity and significance of the proceedings and that there is no anchor in terms of scale when increasing costs under r 14.6(3)(b) and that it is appropriate to have regard to the
actual time spent.1

[3] Since then the parties have agreed to a revised schedule of costs in accordance with Judgment (No 5), which resulted in the plaintiff was awarded the sum of $552,122.00. The judgment has been appealed to the Court of Appeal. It is currently set down to be heard in the same fixture allocated for the substantive appeal. But senior counsel for both parties have requested for the Court to allocate a later date of hearing on the cost issues.

[4] It is in this context that the defendant, Mr van Heeren, applies for an interim stay of execution of the costs order.

The application and the notice of opposition

[5] The defendant’s application is for orders that the execution of the costs orders made pursuant to Judgment (No 5) be stayed on conditions pending the determination of the defendant’s appeals against the substantive judgment or the determination of the appeal of the costs judgment, whichever is the latter.

[6] The application offers three alternative conditions:

(a) That the full amount of the costs judgment be retained by the

defendant’s solicitors in an interest-bearing deposit (the status quo);

1 Kidd v van Heeren (No 5) [2015] NZHC 3191 at [113].

(b)That the sum be paid to the Court pending the determination of the appeal; or

(c) That the plaintiff provides the defendant with some form of security for repayment of the full amount of the costs in a form satisfactory to the Court and the defendant.

[7] In support of the application, the argument is that the substantive appeal is bonafide and raises legitimate questions to be tried, as does the costs appeal.

[8] In respect of the costs appeal, it is contended that the judgment is novel, and the quantum is extremely high, in the context of a five-day interlocutory hearing so that the appeal on costs involves…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kidd v Van Heeren

Details

AGLC: Kidd v Van Heeren [2016] NZHC 568
Case: [2016] NZHC 568
Decision Date: 5 April 2016

CaseChat Overview and Summary

In Kidd v Van Heeren, the High Court of New Zealand was asked to decide whether to grant an interim stay of execution on a costs order pending the outcome of appeals against both the substantive judgment and the costs judgment. The plaintiff, Mr Kidd, had been awarded costs of $552,122, which the defendant, Mr van Heeren, sought to stay pending appeal. The defendant argued that the costs award was excessive, and that there was a risk that Mr Kidd would be unable to repay the sum if the appeal was unsuccessful. The plaintiff, on the other hand, submitted that he was likely to be awarded significant costs in South Africa, which would offset any repayment obligation.

The court had to balance the plaintiff's entitlement to the fruits of his judgment against the defendant's need to preserve his position against the possibility of a successful appeal. The court found that the plaintiff's undertaking to set-off any repayment obligation against his recovery of costs in South Africa was effective, and that the costing process in South Africa was being deliberately delayed by the defendant. The court refused to grant a stay of execution of the costs orders, holding that the defendant had not made a meritorious argument for a stay.

The court's decision was based on a detailed analysis of the evidence presented by both parties, including expert opinions on the likely outcome of the costing process in South Africa. The court found that the plaintiff's undertaking was effective, and that the defendant's conduct in delaying the costing process was a deliberate attempt to postpone the day when he would have to pay significant costs to the plaintiff. The court held that the defendant had not made out a case for a stay of execution of the costs orders, and that the plaintiff was entitled to the fruits of his judgment.

Orders